Lens on Supreme Court; Writer Looks at Inside Workings and Finds Some Surprises

Article excerpt

Byline: Robert Stacy McCain, THE WASHINGTON TIMES

Last week's Supreme Court decision upholding a ban on partial-birth abortion brought a national focus on the subject Jan Crawford Greenburg knows best - she has covered the court since 1994.

For most of those years, the court's membership was stable. After Stephen G. Breyer joined the court in 1994, there followed 11 years in which no justices were replaced - the longest such period in modern history - until the death of Chief Justice William H. Rehnquist in September 2005.

Mrs. Greenburg's new book, "The Inside Story of the Struggle for Control of the United States Supreme Court," initially was conceived as an account of the process of filling the vacancy on the court.

"Of course, at that time, none of us had any idea just what a historic moment was about to unfold, because Justice [Sandra Day] O'Connor the next year would announce her retirement," said Mrs. Greenburg, who began covering the Supreme Court for the Chicago Tribune, and is now legal correspondent for ABC News. "And that, of course, gave President Bush a truly historic opportunity to change the direction of the Supreme Court."

While studying the court, however, Mrs. Greenburg came across information that has shed new light on the internal dynamics of the Supreme Court, and particularly the role of Justice Clarence Thomas.

"When Justice Thomas joined the Supreme Court in 1991, he was quickly portrayed as [Justice Antonin] Scalia's sidekick - that he was just following Scalia's lead - and there were many news stories written to that effect," Mrs. Greenburg says. "But that story line is patently and demonstrably false."

The proof, she says, is in the papers of the late Justice Harry Blackmun, who spent three years on the court with Justice Thomas.

Justice Blackmun "took very detailed notes and recorded their votes when they would have their conferences, and also took down their comments and what they had to say about the cases," Mrs. Greenburg says. "So the Blackmun papers gave a very vivid look at what happened behind the scenes."

The picture that emerges of Justice Thomas is different from what has been portrayed in the press over the years.

"From his first week on the bench, Justice Thomas was willing to stand alone in dissent," Mrs. Greenburg says. "He joined the court with a clear, strong, independent voice. And if any justice [during the 1991-92] term changes his vote to join the other, it was Justice Scalia who changed his vote to join Justice Thomas, not the other way around.

"But, of course, everyone would see Scalia and Thomas voting together and just assumed Thomas was following Scalia, but that's not what happened."

Why was Justice Thomas' role so misunderstood? Those who had opposed his nomination "weren't in any mood to hear what he had to say or give him any credit whatsoever," Mrs. Greenburg suggests.

"It's just unfair," she says, adding that Justice Thomas has "interesting and complex views about how the law and how the Constitution should be read. …